Secretary of Labor v. Victory Rock Texas, LLC (Commission decision, October 23, 2020)

Plain-English summary

Victory Rock waited for the result of an MSHA conference and said it quickly returned its contest form, but it had no proof of mailing or delivery. After a delinquency notice, MSHA told the operator that no contest had been received and advised it to seek reopening. The pro se operator's motion reached the Commission more than 30 days after that discovery, although the motion itself carried an earlier date. The Commission found no bad faith, noted the operator's clean default history and the Secretary's non-opposition, excused the unexplained delay for this case, reopened the assessment, and remanded it.

Decision snapshot

• Cited authority: 30 U.S.C. § 815(a); 29 C.F.R. §§ 2700.1(b), 2700.28
• Outcome: The final assessment was reopened and the matter was remanded.
• Key point: The Commission excused an unexplained filing delay for a pro se operator with no recent default history, but warned that future delays must be prompt or adequately explained.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY
AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVE., N.W., SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF LABOR,

MINE SAFETY AND HEALTH     

ADMINISTRATION (MSHA)          

v.

VICTORY ROCK TEXAS, LLC

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Docket No. CENT 2020-0105-M

A.C. No. 42-02633-501717

BEFORE:  Rajkovich, Chairman; Althen and Traynor, Commissioners

ORDER

BY THE COMMISSION:

This matter arises
under the Federal Mine Safety and Health Act of 1977, 30 U.S.C. § 801 et seq. (2012) (“Mine Act”). On March 23, 2020, the Commission received from Victory Rock Texas, LLC, (“Victory Rock”) a motion seeking to reopen a penalty assessment that had become a final order of the Commission pursuant to section 105(a) of the Mine Act, 30 U.S.C. § 815(a). [1]

Under section 105(a)
of the Mine Act, an operator who wishes to contest a proposed penalty must notify the Secretary of Labor no later than 30 days after receiving the proposed penalty assessment. If the operator fails to notify the Secretary, the proposed penalty assessment is deemed a final order of the Commission. 30 U.S.C. § 815(a).

We have held,
however, that in appropriate circumstances, we possess jurisdiction to reopen uncontested assessments that have become final Commission orders under section 105(a). Jim Walter Res., Inc., 15 FMSHRC 782, 786-89 (May 1993) (“ JWR ”). In evaluating requests to reopen final orders, the Commission has found guidance in Rule 60(b) of the Federal Rules of Civil Procedure, under which the Commission may relieve a party from a final order of the Commission on the basis of mistake, inadvertence, excusable neglect, or other reason justifying relief. See 29 C.F.R. § 2700.1(b) (“the Commission and its Judges shall be guided so far as practicable by the Federal Rules of Civil Procedure”); JWR , 15 FMSHRC at 787. We have also observed that default is a harsh remedy and that, if the defaulting party can make a showing of good cause for a failure to timely respond, the case may be reopened and appropriate proceedings on the merits permitted. See Coal Prep. Servs., Inc., 17 FMSHRC 1529, 1530 (Sept. 1995).

Records of the
Department of Labor’s Mine Safety and Health Administration (“MSHA”) indicate that the proposed assessment was delivered on October 15, 2019, and became a final order of the Commission on November 15, 2019. Victory Rock’s motion says that the proposed assessment in this matter was delivered while it was awaiting word from MSHA about a requested conference of the citations. Victory Rock claims that it returned its notice of contest “quickly,” but has provided no proof of mailing or delivery.

MSHA sent the
operator a delinquency notice on December 30, 2019. On January 9, 2020, the operator contacted MSHA to question the status of its contest. The operator says it was told that MSHA had not received a notice of contest, and that MSHA advised it to file a motion to reopen.   The Secretary does not oppose the requests to reopen, but urges the operator to take steps to ensure that future penalty contests are timely filed.

Having reviewed Victory Rock’s requests and the Secretary’s responses, we find that the operator has sufficiently explained its failure to timely contest the citations at issue as the result of inadvertence, mistake, and excusable neglect. This is a pro se operator with no history of defaults or motions to reopen in the past 24 months. The operator’s motion was not filed with the Commission until March 23 – more than 30 days after the operator says it learned from MSHA that no contest had been filed. However, the motion is dated February 4. While the discrepancy is unexplained, there is no indication of bad faith on the operator’s part, and the Secretary does not oppose reopening or dispute the facts asserted in the operator’s motion.  While we excuse this pro se operator’s failure to explain why the motion was not filed within 30 days of discovery of its default in this case, the operator must ensure that future motions to reopen are filed promptly, or that the failure to do so is adequately explained.

In
the interest of justice, we hereby reopen this matter and remand it to the Chief Administrative Law Judge for further proceedings pursuant to the Mine Act and the Commission’s Procedural Rules, 29 C.F.R. Part 2700. Accordingly, consistent with Rule 28, the Secretary shall file a petition for assessment of penalty within 45 days of the date of this order. See 29 C.F.R. § 2700.28.

/s/ Marco M.
Rajkovich, Jr.

Marco M. Rajkovich, Jr., Chairman

/s/ William I. Althen

William I. Althen, Commissioner

/s/ Arthur R. Traynor, III

Arthur R.
Traynor, III, Commissioner

Distribution (by e-mail):

Scott Cusick

Director

Victory Rock Texas, LLC

[email protected]

Emily Toler Scott , Esq.

Office of the Solicitor

[email protected]

Chief Administrative Law Judge
Glenn Voisin

Federal Mine Safety & Health
Review Commission

[email protected]

Melanie Garris

Office of Civil Penalty
Compliance

Mine Safety and Health
Administration

[email protected]

[1] The motion is
dated February 4, but the Commission’s Docket Office did not receive it until March 23, 2020. There is no explanation for the discrepancy. We take note of the fact that the motion was prepared and filed at about the time the pandemic began to emerge as a generally disruptive force.